2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-27-2001

Maldonado v. Houstoun

Precedential or Non-Precedential:

Docket 97-1893

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Recommended Citation

"Maldonado v. Houstoun" (2001). 2001 Decisions. Paper 139.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/139
Filed June 27, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-1893 

EDWIN MALDONADO; MARIA DELORES MALDONADO, 

individually and as next friends of Ana Maldonado, Pablo 

Maldonado, Edwin Maldonado, Rey Maldonado, Y esenia

Maldonado, and Jose Maldonado, and on behalf of all

others similarly situated; MARIA ORTIZ; MICHAEL ORTIZ, 

individually and as next friends of Julie Ortiz, Michael 

Ortiz, and Angelica Ortiz, and on behalf of all other 

similarly situated; KENSINGTON WELFARE RIGHTS 

UNION; PHILADELPHIA WELFARE RIGHTS 

ORGANIZATION, on behalf of themselves and their 

members; TRAVELER'S AID SOCIETY OF PHILADELPHIA, 

individually and on behalf of its clients 

v. 

FEATHER O. HOUSTOUN, Secretary of the 

PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE; 

DON JOSE STOVALL, Executive Director of the 

PHILADELPHIA BOARD OF ASSISTANCE, both in their 

official capacities, 

Appellants 

STAPLETON, ROSENN, Circuit Judges, and RESTANI, 

Judge, United States Court of International T rade*

(Filed June 27, 2001) 

_________________________________________________________________ 

* The Honorable Jane A. Restani, Judge, United States Court of 

International Trade, sitting by designation. 
OPINION SUR MOTION for ATTORNEYS' FEES 

and COSTS 

ROSENN, Circuit Judge: 

The determination of a reasonable attor ney's fee for a 

prevailing party under a fee shifting statute generally is a 

disagreeable and tedious task, especially wher e the fee 

petition is vigorously contested and the petition is in behalf 

of numerous lawyers who worked on the appeal. The fee 

motion before us claims over 550 hours of attor ney time 

expended exclusively for work on the appeal. W e are 

required to analyze the motion and supporting data to 

ascertain whether the amount claimed is reasonable. The 

motion is especially troublesome because in this single 

issue appeal, ten lawyers represented the plaintiffs and 

claim compensation for not only an aggregate of 550.13 

hours of service on the appeal, but an additional claim of 

25.68 hours for services expended on the fee petition. The 

total sum claimed is $100,996.40 in attorneys' fees and 

$648.74 in costs. 

The plaintiffs, welfare recipients in Pennsylvania, brought 

a class action in 1997 in the United States District Court 

challenging the constitutionality of Pennsylvania's two-tier 

durational residency requirement limiting the amount of 

public assistance benefits for new residents. The plaintiffs 

claimed that the two-tier welfare scheme violated their 

constitutional rights to travel, to equal pr otection, and to 

non-discriminatory treatment under the Privileges and 

Immunities Clause. They moved for class certification and 

an injunction. The plaintiffs sued pursuant to 42 U.S.C. 

S 1983, naming the State Secretary of Public Welfare and 

the Executive Director of the Philadelphia Boar d of 

Assistance as defendants. The District Court held that the 

two-tier welfare scheme violated the Fourteenth 

Amendment Equal Protection Clause, granted the 

injunction, and certified the class action. On the basis of a 

stipulation of counsel, the District Court or dered the 

defendants to pay $248,000 for the plaintiffs' fees for 

services rendered in that court, and costs. The 

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Commonwealth appealed and, after briefing and oral 

argument, we affirmed. See Maldonado v. Houstoun, 157 

F.3d 179 (3d Cir. 1998). 

After our decision, the Supreme Court of the United

States granted certiorari to review Roe v. Anderson, 134 

F.3d 1400 (9th Cir. 1998), a decision which struck down 

similar provisions in a California statute. 

Based on our decision and the decision of the United 

States Supreme Court in Saenz v. Roe, 526 U.S. 489 (1999) 

(affirming the judgment of the United States Court of 

Appeals for the Ninth Circuit in Roe v. Anderson, 134 F.3d 

1400 (9th Cir. 1998)), we now have befor e us the plaintiffs' 

motion for attorneys' fees and costs in connection with 

their appeal to this court. 

I. 

The plaintiffs (appellees) claim that they ar e entitled to 

the attorneys' fees and costs requested because they 

prevailed on the appeal within the meaning of 42 U.S.C. 

S 1983. See 42 U.S.C. S 1988(b) (providing, in the court's 

discretion, a reasonable attor ney's fee to a prevailing party 

to a S 1983 action). As we stated above, they also prevailed 

in the District Court where the trial judge, acting on a 

stipulation of counsel for the parties, enter ed an order on 

January 3, 2000, awarding plaintiffs $248,000 in full 

satisfaction of fees and costs incurred in that court. 

Regrettably, we have no stipulations in the motion before 

us; on the contrary, the appellants (effectively the State) 

strenuously oppose the motion in all of its aspects. 

The State contends that the fees requested ar e "grossly 

unreasonable." It acknowledges that the appellees are 

entitled to receive a fee award, but asserts that the fee 

request is "grotesquely inflated." The State emphasizes that 

the appeal presented only a single issue which, although 

important, was not particularly complicated, and tur ned 

largely on the Court's construction of Shapiro v. Thompson, 

394 U.S. 618 (1969). Specifically, the State ar gues that an 

award for the hours claimed for preparation of the brief at 

oral argument should be substantially r educed, and that 

the appeal's single issue, "which had alr eady been

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thoroughly explored in the District Court," reasonably 

should have required no more than 100 hours. The State 

also contends that the hourly rate claimed for the attorneys 

is excessive and that the allowable hourly rate for all 

lawyers, including those of a private law fir m, should 

conform to the rates of Community Legal Services (CLS), 

which have been widely accepted as fairly reflecting the 

prevailing market rates in Philadelphia. The State asserts 

that attorneys of Dechert, Price & Rhoads pr ovided

insufficient support for their high rates claimed. 

On the other hand, the appellees assert that the issues 

on appeal "were complex and difficult," required familiarity 

with a large body of case law, state statutes and 

regulations, that the case was not "over -lawyered" by the 

plaintiffs, and that they have "alr eady substantially reduced 

their hours to account for any inefficiencies cr eated by a 

multi-firm team." They further assert that the time they 

spent on the appeal was reasonable, and that the State's 

lack of cooperation in the preparation of the appendix 

added to the expense. They also argue that the hourly rate 

claimed is reasonable and that the State should be ordered 

to pay Dechert "at its normal rates, which are set by the 

market." 

II. 

In assessing the reasonableness of a claimed fee in cases 

like this, we use the "lodestar" formula, which requires 

multiplying the number of hours reasonably expended by a 

reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 

424 (1983); Pennsylvania v. Delaware V alley Citizens' 

Council for Clean Air, 478 U.S. 546 (1986); Pennsylvania 

Environ. Def., 152 F.3d at 232."When the applicant for a 

fee has carried his burden of showing that the claimed 

rates and number of hours are reasonable, the resulting 

product is presumed to be the reasonable fee to which 

counsel is entitled." Delaware V alley Citizens' Council, 478 

U.S. at 564 (internal quotation omitted). 

In calculating the hours reasonably expended, a court 

should "review the time charged, decide whether the hours 

set out were reasonably expended for each of the particular 

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purposes described and then exclude those that ar e

`excessive, redundant, or otherwise unnecessary.' " Public 

Int. Research Group of N.J., Inc. v. W indall, 51 F.3d 1179, 

1188 (3d Cir. 1995) (internal citation omitted); see also 

Rode v. Dellarciprete, 892 F .2d 1177, 1183 (3d Cir. 1990) 

("The district court should exclude hours that ar e not 

reasonably expended."). "Hours that would not generally be 

billed to one's own client are not properly billed to an 

adversary." Public Interest Gr oup, 51 F.3d at 1188. Thus, we 

have a positive and affirmative function in the fee fixing 

process, not merely a passive role. 

Generally, a reasonable hourly rate is calculated 

according to the prevailing market rates in the relevant 

community. See Blum v. Stenson, 465 U.S. 886, 895 (1984); 

Dellarciprete, 892 F.2d at 1183. The court "should assess 

the experience and skill of the prevailing party's attorneys 

and compare their rates to the rates pr evailing in the 

community for similar services by lawyers of r easonably 

comparable skill, experience, and reputation." Dellarciprete, 

892 F.2d at 1183. The prevailing party"bears the burden of 

establishing by way of satisfactory evidence, `in addition to 

[the] attorney's own affidavits,' . . . that the requested 

hourly rates meet this standard." W ashington v. 

Philadelphia Cty. Ct. of Common Pleas, 89 F .3d 1031, 1035 

(3d Cir. 1996) (citing Blum v. Stenson , 465 U.S. 886, 895 

n.11 (1984)). The starting point in ascertaining a 

reasonable hourly rate "is the attor ney's usual billing rate, 

but this is not dispositive." Public Inter est Group, 51 F.3d at 

1185. 

In analyzing this heated controversy, some concepts and 

precepts are indisputable. The plaintif fs presented an 

excellent case and a high quality brief. Accor dingly, they 

are entitled to all hours "reasonably expended on the 

litigation." West Virginia University Hospitals, Inc. v. Casey, 

898 F.2d 357, 360 (3d Cir. 1990) (quoting Hershey v. 

Echerhart, 461 U.S. 424, 436 (1993). The converse is also 

true; they are not entitled to compensation for hours 

unreasonably expended on the litigation. 

III. 

We do not question the accuracy of counsel's records. 

Our principal concern is whether the time claimed is 

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reasonable for the services perfor med, a concern which is 

accentuated because of the many lawyers involved in behalf 

of the plaintiffs. Ordinarily, this appeal could have been 

briefed and argued by a single lawyer or two. Lawyers 

should understand that although the likelihood of success 

in a fee shifting case may be promising, the pr ospects of 

payment by a defendant with a deep pocket or a defendant 

with tax collecting powers should not encourage the

utilization of an excess number of lawyers on the 

preparation of the appeal. Nor is work on the appeal 

intended to be a training school for law students or 

embryonic lawyers at the expense of the losing party. A 

reviewing court must adhere to the statutory and case law 

standards. As do the district courts, an appellate court also 

has a positive and affirmative function in the fee fixing 

process. 

In analyzing the services rendered on this appeal, we 

divide them into categories: 1) research and briefing; 2) 

preparation of the supplemental appendix; 3) oral 

argument; and 4) communication and confer ences. We will 

determine a reasonable hourly rate and then review the 

fees claimed for preparing the fee petition. 

1. Research and Briefing 

The facts before this court on the underlying appeal 

comprised two short paragraphs. The single issue before us 

on the appeal, although significant, was framed in these 

words: "Whether Pennsylvania violates the Constitution by 

providing that, for one year after their arrival in

Pennsylvania, applicants for certain welfare benefits may 

receive only the amount they would have r eceived in their 

state of prior residence." We, ther efore, noted that we were 

"only to determine the constitutionality of the state 

statute," and that we only had to address the propriety of 

the District Court's legal conclusion in granting the 

injunction. 

In our analysis of the law on the right to travel, we stated 

in our written opinion, as did the District Court, that the 

seminal case on the subject of strict scrutiny of state 

durational residency requirements as prerequisite to 

eligibility for welfare benefits was Shapiro v. Thompson, 394 

 6 
U.S. 618 (1969). We observed that the Court r eaffirmed this 

decision five years later in Memorial Hospital v. Maricopa 

County, 415 U.S. 250 (1974). The holdings in those cases 

have never been overturned, and were very well known to 

legal scholars and those practicing public service law. They 

were binding precedent upon us in deciding this case. We 

believed then, and we have no reason to change our 

opinion now, that this case was important and inter esting, 

but not complex. This in no way alters plaintif fs' right to a 

reasonable fee for their services, but it does not justify 

excessive claims. The immediate and difficult question is 

whether the hours claimed are reasonable for the services 

performed. 

First, we note that the appellees' attorneys on appeal 

represented them in the District Court. Judge Newcomer 

had discussed the legal issue on appeal in a well-written 

and thorough opinion. See Maldonado v. Houstoun, 177 

F.R.D. 311 (E. D. Pa. 1997). In his opinion, Judge 

Newcomer cited the District Court opinion in Roe v.

Anderson, 166 F. Supp. 977 (E. D. Cal. 1997) enjoining the 

enforcement of a similar statute. The Supr eme Court later 

affirmed Anderson in Saenz v. Roe, supra. The District 

Court also discussed at length Shapiro and its progeny. See 

Maldonado, 177 F.R.D. at 323-33 (1997). 

Thus, much if not all of the pertinent law had been

briefed and argued in the District Court, and the District 

Court opinion carefully and thoughtfully analyzed it. We 

are, therefore, stunned that over 550 hours are claimed for 

researching, briefing, conferring, pr eparing a supplemental 

appendix, and arguing the single constitutional issue before 

us. 

The appellees noted in their brief to this court that the 

State "has explicitly limited its arguments on appeal to the 

class's likelihood of success on the merits" and has waived 

the issues pertaining to the other three factors necessary to 

the issuance of a preliminary injunction. In addition, the 

salient cases and statute on the single issue to be argued 

by the State were set forth by the District Court in its 

opinion. The court analyzed at length Shapir o v. Thompson 

and its progeny, and discussed the criticism of Shapiro in 

Attorney General of New York v. Soto-Lopez, 476 U.S. 898 

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(1986), Memorial Hospital v. Maricopa County, 415 U.S. 250 

(1974), and a leading law review article by Thomas R. 

McCoy entitled "Recent Equal Protection Decisions -- 

Fundamental Right to Travel or `Newcomers' as a Suspect 

Class?" The District Court also discussed T odd Zubler's law 

review article on "The Right to Migrate and Welfare Reform: 

Time for Shapiro v. Thompson to Take a Hike." 

Thus, the researching and briefing of the law on the 

single uncomplicated issue before this court did not require 

creating or developing an original theory or analyzing 

obscure principles of law. Moreover , the burden rested on 

the State, not the appellees, in framing the issue and 

preparing the appendix. Notwithstanding, appellees'

counsel claim an enormous amount of time for r esearching 

and briefing an issue which they had successfully tried, 

researched, and briefed in the District Court. 

True, the appellees prepared and submitted an excellent 

brief of 41 pages. The first 13 pages, however , essentially 

contain the appellee's statement of the issue, the counterstatement of the case, and a two-page summary of the 

argument. The remaining 28 pages contain the argument. 

Our arithmetic shows that the appellees claim an aggregate 

amount of 276.65 hours for research and briefing. Under 

the foregoing circumstances, we believe that a reasonable 

and generous amount of time for resear ch and briefing on 

the single issue, especially considering the r esearch and 

briefing in the District Court, and the pertinent law set 

forth in the District Court decision, is 120 hours.

2. Supplemental Appendix 

Appellees claim 32.50 hours for the preparation of their 

appendix supplementing the State's appendix. Considering 

that the appellant had the burden of pr eparing and

submitting the original appendix, we believe two nor mal 

work days should have been more than sufficient for the 

preparation of a supplemental appendix. W e will allow 16 

hours for this purpose. 

3. Oral Argument 

Appellees claim 169.35 hours in preparation for a twenty 

minute oral argument. This is the equivalent of slightly 

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more than 21 full eight-hour days. Susan Frietsche, who 

made the oral argument for the appellees, individually 

claimed 77.3 hours in preparation for the oral argument 

and one hour in court for making the argument. Her 

colleagues in the case claimed an aggregate of 72.05 hours 

preparing for the oral argument to be made by Frietsche 

who, although at the Bar for only six years when she 

argued this case before the court, had achieved an 

impressive record at college, law school, and in public 

service litigation. A total of 169.35 hours in pr eparation for 

an oral argument on a single issue that had been tried, 

briefed, and argued in the District Court is unacceptable. 

65.5 hours are claimed by Eliza Shapiro, and 15.25 hours 

by Sarah Moskowitz in preparation for oral ar gument. If a 

private client had agreed to pay for such services, so be it. 

But in fee shifting, there are standar ds to be maintained. 

See Norman v. Housing Auth. of Montgomery, 836 F.2d 1292 

(11 Cir. 1988) (court should exclude hours that would be 

unreasonable to bill to a client, irrespective of counsel's 

experience, skill, or reputation). 

A reasonable fee for hours spent preparing for a legal 

argument should be limited to hours reasonably necessary 

for a lawyer to become familiarized with the facts and the 

law pertaining to the issue to be argued, an analysis of the 

opponent's argument, and questions anticipated to be 

posed by the court. Under the fee shifting statute, the 

losing party is expected to pay for hours reasonably spent 

in the argument and its preparation, but not for excessive 

hours, or hours spent in learning or excessively rehearsing 

appellate advocacy. We believe 24 hours for preparation for 

this oral argument, and two hours for attendance at oral 

argument, is fair and reasonable. 

4. Conferences and Communications 

Appellees also request payment for over 40 hours spent 

on telephones, conference calls, and meetings to plan 

strategy, and payment for over 80 hours of miscellaneous 

time. There is considerable question whether many of these 

activities, communications and conference calls were 

necessary at all. For reasons evident in Part IV of our 

opinion, we will not tarry in our analysis of these claims 

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but will allow 40 hours as generous and r easonable for all 

these purposes. 

5. Fee Petition 

We also believe that the time claimed for the preparation 

of a simple six-page fee petition, largely supplemented by 

affidavits of several counsel, resumes, and time sheets, is 

excessive. Again we will not set forth our r easons therefor 

at this point but will resolve the matter in Part IV hereof. 

6. Hourly Rate 

The appellees have the burden of establishing a 

reasonable hourly rate for each of the attor neys. Each of 

the parties offer very little evidence pertaining thereto. The 

fee schedule established by Community Legal Services, Inc. 

("CLS") "has been approvingly cited by the Third Circuit as 

being well developed and has been found by [the Eastern 

District of Pennsylvania] to be a fair reflection of the 

prevailing market rates in Philadelphia." See Rainey v. 

Philadelphia Housing Auth., 832 F. Supp. 127, 129 (E. D. 

Pa. 1993)(citing Swaayze v. Philadelphia Housing Auth., No. 

91-2982, 1992 WL 81598, at N2 (E. D. Pa. Apr . 16, 1992)). 

The State has no objection to their use here. W e approve of 

those rates as reasonable in fixing the hourly rates in this 

case, and deny the hourly rates that are inconsistent with 

them. 

IV. 

In summary, we believe a reasonable number of hours for 

the services performed in behalf of the plaintiffs is as 

follows: 

 Procedure Hours 

 Research and briefing 120 

 Preparation of supplemental 

 appendix 16 

 Preparation for oral argument 24 

 Attendance at oral argument 2 

 Telephone calls and conferences 40 

 Preparation for fee petition 10 

 Total reasonable hours 212 hours 

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In their Memorandum in Opposition to Appellees' Motion, 

the State used the CLS fee schedule to adjust appellees' 

hourly rates where appropriate. We hold that the rates set 

forth in the CLS schedule are reasonable for the services 

performed in this case. 

The State's memorandum submits that a reasonable 

number of hours for the services perfor med in this appeal 

is an aggregate of 219.84 hours. Our independent analysis 

confirms that this figure is gener ous and not unreasonable. 

The State also has undertaken the difficult task of

calculating the lodestar for each individual claimant; we 

deem their calculations to be reasonable and accurate. That 

calculation is as follows: 

ATTORNEY HOURS HOURLY RATE LODESTAR 

McLaughlin 15.25 $250 $3,812.50 

Nosowsky 32.70 $140 $4,578.00 

Fitinides 35.59 $120 $4,270.80 

Terry 27.20 $130 $3,536.00 

Frietsche 28.60 $150 $4,290.00 

Shapiro 23.90 $90 $2,151.00 

Moskowitz 0.00 $60 0.00 

Weishaupt 22.35 $265 $5,922.75 

Stein 10.25 $275 $2,818.75 

Kreimer 24.00 $250 $6,000.00 

 TOTAL 219.84 $37,379.80 

The State has no objection to the claim for costs of $678.74 

and we will allow it. 

With respect to the fee petition, the State asserts that the 

hours claimed should reflect a reduction of 50% because of 

the limited success on the fee petition. We have held "that 

the fee reduction rationale of Hensley. . . applies by force 

of the Court's reasoning to fees generated in the litigation 

of a fee petition, and compels us to treat the fee petition 

litigation as a separate entity subject to lodestar and 

Hensley reduction analysis." Institutionalized Juveniles v. 

Secretary of Pub. Welfare, 758 F.2d 897, 924 (3d Cir. 1985); 

accord, Durette v. Cohen, 790 F.2d 360 (3d Cir. 1986); see 

also West Virginia University Hospitals, Inc., 898 F.2d at 

367. We believe that this proposal is r easonable, and 

 11 
applying the rates we have already held to be r easonable, 

we approve the following sums: 

 McLaughlin 0.35 hours x $250 = $ 87.50

 Fitinides 5.85 hours x $120 = $ 702.00

 Frietsche 1.4 hours x $150 = $ 210.00

 Shapiro 0.4 hours x $90 = $ 36.00

 Weishaupt 4.45 hours x $265 = $1179.25

 Kreimer 0.25 hours x $250 = $ 62.50

 TOTAL 12.7 hours $2277.28

V. 

Accordingly, we hold that the lodestar pr oposed by the 

State is reasonable and award $37,379.80 as attorneys' 

fees for the work performed on appeal. W e will award 

$2277.28 for preparation of the fee petition. W e will award 

the full amount of costs claimed, $678.74; this amount is 

reasonable and uncontested. The State is dir ected to pay 

the same to individual counsel in the sums set forth above. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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